Opinion
Submitted October 28, 1938 —
Decided January 13, 1939.
The Municipal Manager act of 1923 ( Pamph. L., pp. 217, 229; R.S. 40:82-4, d) invests the city manager with the power of appointment of all municipal servants, except those specifically enumerated therein to be appointed by the municipal council; and this notwithstanding the provisions of section 805 (now part of R.S. 40:82-4 j) that he "shall in all matters act under the direction and subject to the approval of the municipal council."
On appeal from the Supreme Court, whose opinion is reported in 120 N.J.L. 48.
For the appellant, S. Rusling Leap.
For the respondent, Samuel F. Eldredge ( William Elmer Brown, Jr., of counsel).
The judgment under review will be affirmed, and except for minor matters herein noted, for the reasons expressed in the opinion delivered by Mr. Justice Heher in the Supreme Court.
1. The letter to appellant directing him to "report for work" was written by the "acting city manager" who in fact was the city clerk, appointed by council, we presume as a "properly qualified person" pursuant to section 807 of the statute. Pamph. L. 1923 (at p. 230); R.S. 40:82-6.
2. It is urged that section 805 ( R.S. 40:82-4 j) provides that "the municipal manager shall in all matters act under the direction and supervision and subject to the approval of the municipal council;" and that this confers upon the council a supervisory control over appointments, although it is expressly conceded that no other method of appointment is authorized by the act, than by the manager under section 804 (d). But we agree with the Supreme Court that this general language of section 805 should not be read as affecting the specific power of appointment contained in section 804 (d), and that independent appointment by the manager is of the essence of the legislative scheme.
We agree further that appellant's claim to the office, position, or employment, whatever it may be, is defective on his own showing. Loper v. Millville, 53 N.J.L. 362.
The judgment is accordingly affirmed.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, CASE, DONGES, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 13.
For reversal — None.